within that portion of the Indian country recognized and acknowledged as the territory of the Arickarees, Gros Ventre, and Mandan Indians. in the treaty concluded at Fort Laramie September 17, 1851. (Revision of Indian Treaties, p. 1048.) Said treaty was never ratified, but Congress made appropriations in accordance with its provisions.

Under date April 2, 1870, the Commissioner of Indian Affairs submitted to the Secretary of the Interior a statement relative to the matter, and recommended that an Executive order be invoked setting apart a reservation for said Indians, as proposed, and such order was issued on the 12th same month. (See Report of Commissioner Indian Affairs for 1882, pp. 260-262.)

The reservation thus established-known as Fort Berthold Reserveembraced an estimated area of 8,330,000 acres (about 4,000,000 in Montana and the remainder in Dakota), and included the land in question.

By an Executive order dated July 13, 1880 (Id., 262), the boundaries of said reservation were changed, and that portion in Montana, and the greater part of that in Dakota, restored to the public domain.

A number of townships in the area thus restored have been surveyed and others are under contract. The plats of T. 16 N., R. 55 and 56 were filed in your office June 12, 1882.

The second section of said act of 1864 (supra) provides that the United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of said Indians, the Indian titles to all lands falling under the operation of said act, and acquired in the donation to the road named.

The grant to the company by the third section of said act is of

Every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, * and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free home pre-emption, or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the Commissioner of the General Land Office.

My attention has been called to a letter of the honorable Secretary of the Interior, dated November 1, 1881, in reply to a communication from Geo. Gray, esq., general counsel for the Northern Pacific Railroad Company, claiming that under its grant said company had a right to take from the Crow Indian Reservation, adjacent to the line of its road, material for the construction thereof, and asking permission to take such material, with the consent of the Indians, to whom the company was willing to make satisfactory compensation for the same. This reservation is a part of the territory recognized as that of the Crow Indians by the treaty of 1851, herein referred to. It was established by a treaty concluded May 7, 1868, which was formally ratified and proclaimed August 12, 1868. (Revision of Indian Treaties, p. 237.) Mr.

Gray's application was denied by the Department upon the ground that the land was not public land at the date of the grant to the railroad company, being then occupied by said Indians, who did not acquire title by the treaty of 1868, the effect of which was simply to confirm title already existing.

The question before me is not whether the tracts herein described were public lands at the date of the grant, but were they such at the date of filing of the map of definite location of the road, and not within the exceptions specified in section 3 of the granting act.

As herein shown, the Executive order, which extinguished the Indian right of occupancy, antedated the filing of said map.

No rights were acquired by settlement while the land was in the reservation, and upon the issue of said Executive order the withdrawal of 1872 became effective and prevented the acquisition of any such rights. (Hoagland v. N. P. R. R. Co., 5 Copp's L. O., 107.)

So far, therefore, as the applications under consideration apply to lands in the odd-numbered sections the same are held for rejection subject to appeal within sixty days.

From the plat of the private survey of the claim of Ellen Brown it appears that the claim is intended to cover a tract of land twenty chains in width extending along the right bank of the Yellowstone River for a distance sufficient to make 320 acres, but in attempting to show said claim in connection with the lines of public survey, it is found that fol lowing the courses and distances given the greater part of the claim falls in the river. The other claims herein mentioned border on the Brown claim and their boundaries are governed by the surveys thereof, so that until the description of said claim is corrected no part of these claims can be adjusted. Such correction requires a new survey, which will be allowed provided the boundaries of said claim were originally so marked that they can now be found and identified.

After such correction, if the parties so elect, said claims will be ad. justed as to the even-numbered sections, and hearings will be ordered to determine their rights as against claimants under the pre-emption and homestead laws and under another scrip location, whose claims for a part of said even-numbered sections appear of record.

If the parties do not desire to have their claims adjusted to the evennumbered sections, they may relinquish the same, and have the scrip returned.

The odd-numbered sections herein described are included in the list of lands selected for the railroad company filed in your office on June 23d last, received in this office on 23d ultimo.

Notify the scrippees of this decision. The railroad company will be notified through its resident attorney by letter from this office.

VIII.-NEW MEXICO DONATION.

ACT OF JULY 22, 1854-VOID ENTRY.

ATLANTIC AND PACIFIC RAILROAD COMPANY.

A donation claim void on its face does not except the land from the grant to the company.

Secretary Teller to Commissioner McFarland, December 3, 1883.

SIR: I have considered the appeal of the Atlantic and Pacific Railroad Company from your decision of August 16, 1882, holding that a certain donation claim to the SE. of the NW. of Sec. 17, T. 7 N., R. 22 E., Santa Fé, N. Mex., excepted said tract from the grant to said company.

The records of your office show that one Francisca Rael filed donation notification No. 20 for the NE. of said section on July 29, 1870; that + he relinquished the same on December 6, 1870-doubtless because of a misdescription of the tract on which he had actually settled-and filed notification No. 25 on December 7, 1870, for the tract first mentioned. In both said notifications he alleged settlement on March 8, 1863, and claimed under the donation act of July 22, 1854 (10 Stat., 308). He relinquished the tract herein involved on February 21, 1874. Subsequently a homestead entry on it was allowed; but this has been disposed of, and does not enter into the case at bar.

The land is within the limits of the grant to the Atlantic and Pacific Railroad Company, the right to which attached March 12, 1872.

In the case of Juan Rafael Garcia (9 Land Owner, 203) I held that the said donation act required that settlement and cultivation should be commenced on or before January 1, 1858. It is manifest, therefore, that Rael's claim, alleging settlement on March 8, 1863, was void on its face, and did not except the land from the grant to said company. (Thomas v. Saint Joseph and Denver Railroad, 3 Land Owner, 197; Graham v. Hastings and Dakota Railroad, 9 Land Owner, 236). Your above decision is therefore reversed.

IX. PRACTICE.

PARTY-REMITTITUR-RELIEF.

TROY'S HEIRS v. SOUTHERN PACIFIC RAILROAD COMPANY.

The defeated party in a case before the Secretary of the Interior on appeal is a party to it until it is closed by execution of the decree. He has the right to call attention to the manner in which the Secretary's decision is executed by the Commissioner.

After a case has been decided by the Secretary, and a particular relief granted, the Commissioner cannot grant any relief or direct any action he may think the party would have been entitled to upon the record, had he applied for it.

Secretary Teller to Commissioner McFarland, June 21, 1883.

SIR: I have examined the proceedings had by your office in the case of the heirs of Daniel Troy v. Southern Pacific Railroad Company, subsequent to my decision therein, referred to in your letter of the 25th ultimo.

On the 28th day of February, 1881, the heirs aforesaid made application to purchase the land involved, under section 2 of the act of June 15, 1880. The defendant, the railroad company, resisted the application, claiming the land by virtue of its grant. The local officers rejected the application, but on appeal you granted it; and your decision in that respect was affirmed, on appeal to this Department, by decision of February 6 last, and the application to purchase under the provisions of said act was directed to be allowed.

You state that on February 14, 1883, you transmitted a copy of my decision to the local office (Visalia, Cal.), and directed that said heirs be allowed to purchase said land under the act aforesaid; that the next day the attorney for said heirs filed an application in your office to have the tract in question patented to Daniel Troy (deceased), under his homestead entry; and that on March 12, after a consideration of the facts, you revoked your letter of February 14, and instructed the register and receiver to issue supplemental final certificate, in the name of Daniel Troy, to cover the land in question; that final certificate was accordingly issued April 11, and approved for patent April 23; and that by letter of the latter date the attorney for said railroad company requested your office to recall your said letter of March 12, and to require said heirs to purchase the land under the act of June 15, 1880, aforesaid.

You further state that on May 9 you advised the attorney for said railroad company that the claim of the company to said land having been concluded by the decision of this Department, the question of the subsequent disposition of the land as between the heirs and the Government was one with which the company had nothing to do.

The attorney for the company having addressed a letter to this Department, proceedings have been stayed by my direction until the questions thus raised could be determined.

It is claimed that the company has now no standing in the case, and that the action and motion on the part of the company should be dismissed.

The right of the company to be heard as to the execution of the final decision is evidently misapprehended by your office, and by the counsel for the heirs.

When the record is returned to your office from this Department, with its decision, and direction for the execution of such decision, it is in the nature of a remittitur in the law courts. Can there be any doubt about the right of a party, though defeated in the appellate tribunal, to see that the decree of that tribunal is executed as therein directed? And if the tribunal to which the record is remitted should attempt to execute the decree in a manner different from that ordered, or to substi tute another remedy in place of it, would there be any doubt about the right of such party to move the superior tribunal to correct the proposed wrong execution of its decree?

The decisions of the appellate tribunal are of no avail unless they are to be executed as made. If the opposite party is not permitted to move in such tribunal, there is no one that would have that right; for all others would be strangers to the record. It would often happen that the defeated party would suffer from a wrong execution of the decree. In the present case it may make no difference to the company whether the land in controversy passes to the heirs by virtue of a purchase or under an entry made by Daniel Troy in his lifetime. In another case the rights of the company, in respect to its land grant or the right to indemnity for the land lost by the particular decision, might be af fected.

A party, although the judgment is against him, has a standing in the case and a right to be heard, until it is finally closed by an execu tion of the decree.

I must, therefore, decline to dismiss these proceedings, upon the ground that the defendant has no standing in the case.

From what has already been said it may be inferred that the prac tice of your office in this case cannot be approved.

The application was to purchase the land under the relief act already cited. The party making it was represented by able counsel, and presumed to know the relief desired and to which the party was entitled. The case was considered upon no other ground, and upon the record furnished by your office, your decision was affirmed, and it was ad judged that the party was entitled to purchase under the act aforesaid.

You now direct upon the same record that the register and receiver issue a final certificate in the name of Daniel Troy, deceased, on his homestead entry made in 1867. That was not the remedy applied for, nor was it considered by you or this Department; and the defendant had not been heard upon that question. The record in this case may disclose sufficient facts to authorize the action now proposed by you;